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Originally posted by aptness
This is simply not true and, if you truly are a “retired veteran,” it’s even more worrying how ignorant you are of the Conventions, which are at the core of the laws of war.
Originally posted by SFGirl
They are covered by the Geneva Convention and by the very fact that they are not UNIFORMED Combatants they have none of the protections of the Geneva Convention.
If a detained person qualifies as a POW he is protected under the Third Geneva Convention, but if he does not qualify as a POW he is covered by the Fourth Geneva Convention, and is afforded the minimum protections of the Conventions, as specified in Common Article 3.
This is completely untrue and easily demonstrable as such.
Originally posted by SFGirl
because it is perfectly legal under the Geneva Convention to execute them on sight.
Common Article 3 states that “... the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all judicial guarantees which are recognized as indispensable by civilized peoples” “are and shall remain prohibited at any time and in any place whatsoever” in respect to “persons taking no active part in the hostilities,” like “those placed hors de combat by ... detention, or any other cause”.
I await your citations of the Geneva Conventions that allow “executions on sight” as you claim they do.
Nonsense. Being a national is not a requirement for being a privileged combatant. Foreign volunteers are permissible under the laws of war.
Originally posted by OldCorp
Another thing that makes them UNLAWFUL enemy combatants is the fact that most of them aren't even from Afghanistan.
You two make these absolute statements, and while you might fool some uninformed people by hiding your extreme views behind vague references to the Conventions, it’s quite obvious you have little or no knowledge of the laws of armed conflict.
Originally posted by aptness
And as I’ve previously pointed out (post) the Supreme Court, in Hamdan, ruled that, at least, Common Article 3 of the Geneva Conventions applies to the detainees of the “war on terror”—
The D. C. Circuit ruled Common Article 3 inapplicable to Hamdan because the conflict with al Qaeda is international in scope and thus not a “conflict not of an international character.” That reasoning is erroneous. (...)
Originally posted by aptness
So what Xcathdra here says about torture and executions, when applied to the detainees of the “war on terror,” is simply unsupported by the facts.
4.1.1 Members of the armed forces of a Party to the conflict and members of militias of such armed forces
4.1.2 Members of other militias and members of other volunteer corps, including those of organized resistance movements, provided that they fulfill all of the following conditions:
that of being commanded by a person responsible for his subordinates;
that of having a fixed distinctive sign recognizable at a distance (there are limited exceptions to this among countries who observe the 1977 Protocol I);
that of carrying arms openly;
that of conducting their operations in accordance with the laws and customs of war.
4.1.3 Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.
4.1.4 Civilians who have non-combat support roles with the military and who carry a valid identity card issued by the military they support.
4.1.5 Merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law.
4.1.6 Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.
4.3 makes explicit that Article 33 takes precedence for the treatment of medical personnel of the enemy and chaplains of the enemy.
Article 5 specifies that prisoners of war (as defined in article 4) are protected from the time of their capture until their final repatriation. It also specifies that when there is any doubt whether a combatant belongs to the categories in article 4, they should be treated as such until their status has been determined by a competent tribunal.
The law is mandatory for nations bound by the appropriate treaties.
There are also other customary unwritten rules of war, many of which were explored at the Nuremberg War Trials. By extension, they also define both the permissive rights of these powers as well as prohibitions on their conduct when dealing with irregular forces and non-signatories.
Basic rules of IHL
1.Persons hors de combat and those not taking part in hostilities shall be protected and treated humanely.
2.It is forbidden to kill or injure an enemy who surrenders or who is hors de combat.
3.The wounded and sick shall be cared for and protected by the party to the conflict which has them in its power. The emblem of the "Red Cross," or of the "Red Crescent," shall be required to be respected as the sign of protection.
4.Captured combatants and civilians must be protected against acts of violence and reprisals. They shall have the right to correspond with their families and to receive relief.
5.No one shall be subjected to torture, corporal punishment or cruel or degrading treatment.
6.Parties to a conflict and members of their armed forces do not have an unlimited choice of methods and means of warfare.
7.Parties to a conflict shall at all times distinguish between the civilian population and combatants. Attacks shall be directed solely against military objectives.[22]
Violations and punishment during conflict, punishment for violating the laws of war may consist of a specific, deliberate and limited violation of the laws of war in reprisal.
Soldiers who break specific provisions of the laws of war lose the protections and status afforded as prisoners of war but only after facing a "competent tribunal" (GC III Art 5)
At that point they become an unlawful combatant but they must still be "treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial", because they are still covered by GC IV Art 5.
Spies and terrorists are only protected by the laws of war if the power which holds them is in a state of armed conflict or war and until they are found to be an unlawful combatant.
Depending on the circumstances, they may be subject to civilian law or military tribunal for their acts and in practice have been subjected to torture and/or execution. The laws of war neither approve nor condemn such acts, which fall outside their scope.
Originally posted by aptness
Countries that have signed the UN Convention Against Torture have committed themselves not to use torture on anyone for any reason.
There were weapons of mass destruction in Iraq after all.
The massive cache of almost 400,000 Iraq war documents released by the WikiLeaks Web site revealed that small amounts of chemical weapons were found in Iraq and continued to surface for years after the 2003 US invasion, Wired magazine reported.
The documents showed that US troops continued to find chemical weapons and labs for years after the invasion, including remnants of Saddam Hussein's chemical weapons arsenal -- most of which had been destroyed following the Gulf War.
In August 2004, American troops were able to buy containers from locals of what they thought was liquid sulfur mustard, a blister agent, the documents revealed. The chemicals were triple-sealed and taken to a secure site.
Also in 2004, troops discovered a chemical lab in a house in Fallujah during a battle with insurgents. A chemical cache was also found in the city.
We need not decide the merits of this argument [that al-Qaeda is not a signatory] because there is at least one provision of the Geneva Conventions that applies here even if the relevant conflict is not one between signatories. Article 3, often referred to as Common Article 3 because, like Article 2, it appears in all four Geneva Conventions, provides that in a “conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum,” certain provisions protecting “[p]ersons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by ... detention.”
But if, for some reason, prisoner of war status -- to take one example -- were denied to them, they would become protected persons under the present Convention. [4th Geneva Convention] ...
Members of resistance movements must fulfil certain stated conditions before they can be regarded as prisoners of war. If members of a resistance movement who have fallen in to enemy hands do not fulfil those conditions, they must be considered to be protected persons within the meaning of the present Convention. [4th Geneva Convention] ...
Every person in enemy hands must have some status under international law: he is either a prisoner of war and, as such, covered by the Third Convention, a civilian covered by the Fourth Convention, or again, a member of the medical personnel of the armed forces who is covered by the First Convention. There is no intermediate status; nobody in enemy hands can be outside the law.
Article 3's protections exist even if one is not classified as a prisoner of war.
By virtue of the Constitution's supremacy clause (Article VI, clause 2) a treaty that is concluded compatibly with applicable constitutional requirements may have status as the "supreme law of the land," along with federal statutes and the Constitution itself.
The Supreme Court has, since Marbury v. Madison (1803), been the final interpreter of treaties. And in Hamdan v. Rumsfeld the Court found that Article 3 of the Geneva Conventions applies to detainees of the “war on terror.”
Congress does not intend with this legislation to prohibit the Federal courts from considering whether the obligations of the United States under any treaty have been met. To paraphrase an opinion written by Chief Justice Roberts recently, if treaties are to be given effect as Federal law under our legal system, determining their meaning as a matter of Federal law is the province and duty of the judiciary headed by the Supreme Court. So, though the President certainly has the constitutional authority to interpret our Nation’s treaty obligations, such interpretation is subject to judicial review.
Most importantly, the lack of judicial enforceability through a private right of action has absolutely no bearing on whether Geneva is binding on the Executive branch. Even if the Geneva Conventions are not enforceable by individuals in our Nation’s courts, the President and his subordinates are bound to comply with Geneva, a set of treaty obligations that forms part of our American jurisprudence. That is clear to us and to all who have negotiated this legislation in good faith.
Originally posted by aptness
The ICC critics and Bush doctrine supporters make the bogus claims that the ICC violates the Constitution because of “limitations of due process” protections, yet as you can see from the chart I mentioned above — but didn’t link correctly and my apologies to the interested parties — every single one of those bogus claims is debunked.
Originally posted by aptness
While it is true there is no trial by jury in the ICC — the only divergence with the Constitution —
Originally posted by aptness
the critics don’t mention the fact that US citizens, including military personnel, are already tried for crimes in countries where jury trials are not used — one of those countries being Israel, but they don’t mention this because it doesn’t support their narrative.
Originally posted by aptness
This fact was explained on the Human Rights Watch ICC fact page, I previously linked—
Only the right to trial by jury is missing from the Rome Treaty because of the impracticality of impaneling a jury to hear a case against someone like Pol Pot or Slobodan Milosevic. But the United States has long accepted that its citizens (including U.S. service members) will not get jury trials when accused of crimes in countries like France or Japan, where juries are not used. The United States has signed extradition treaties with many countries that explicitly permit Americans to be tried without a jury.
Originally posted by aptness
Further demonstrating their ignorance of the Rome Statute and the ICC, the critics insist the ICC “cannot be used against a nation that is not a signatory to the treaty,” and this, they claim, is based on the ICC statute itself.
Originally posted by aptness
Leaving aside the monumental lack of understanding and obvious incorrection that the ICC doesn’t investigate or prosecute nations but individual people, the Rome Statute, in Article 12 and Article 13 — namely 12(2) and 13(b), respectively — specify that the ICC has jurisdiction over crimes committed in the territory of non-signatories in case of a United Nations Security Council referral.
Originally posted by aptness
namely 12(2) and 13(b), respectively — specify that the ICC has jurisdiction over crimes committed in the territory of non-signatories in case of a United Nations Security Council referral.
Originally posted by aptness
Artiucle 12 / article13
Originally posted by aptness
Comically, and demonstrative of their disingenuousness, in trying to perpetuate lies about the ICC and attempting to discredit the information I presented, this critic actually has the audacity to link to this page — supposedly supporting his claims and disproving mine — but where we can actually read, among other things, the following unequivocal statement—
When a matter is referred by the Security Council, the Court has jurisdiction regardless of whether the State concerned is a party to the ICC treaty.
This is how disingenuous the ICC critics and Bush doctrine supporters are. They make bogus claims and provide numerous links they don’t even bother to read and purposely ignore the information that debunk their claims.
Originally posted by aptness
The critics, continuing their spectacular demonstration of ignorance, claim things like “there is no vote on the Rome Statute,” and that I couldn’t even get the numbers right, in order to confuse people and dismiss the information I presented. Even a simple wikipedia consultation would confirm the information I posted—
Following years of negotiations aimed at establishing a permanent international tribunal to prosecute individuals who commit genocide and other serious international crimes, the United Nations General Assembly convened a five-week diplomatic conference in Rome in June 1998 "to finalize and adopt a convention on the establishment of an international criminal court". On 17 July 1998, the Rome Statute was adopted by a vote of 120 to 7, with 21 countries abstaining.
Originally posted by aptness
Another bogus claim made was that I was wrong about my statement that “only two cases, in the history of the Court, have been referred by the Security Council” I made in my previous post. Again, a simple wikipedia consultation would confirm these facts—
To date, the Court has opened investigations into six situations, all of them in Africa: Northern Uganda, the Democratic Republic of the Congo, the Central African Republic, Darfur (Sudan), the Republic of Kenya and Libya. Of these six, three were referred to the Court by the states parties (Uganda, Democratic Republic of the Congo and Central African Republic), two were referred by the United Nations Security Council (Darfur and Libya) and only one was begun proprio motu by the Prosecutor (Kenya).
Originally posted by aptness
The ICC critics and Bush doctrine supporters have no shame, and will gleefully spread lies and try to confuse people, contrary to the spirit of AboveTopSecret. I hope this post has been elucidative of their tactics.
Originally posted by aptness
I will gladly respond to the serious and intelligent members who wish to further debate the facts.
Out of curisoity, where did you get executeing gitmo detainees from? Was that between you and the other poster, or are you saying we have executed detainees?
if we were to truly to follow the Rules of War - there would be no Gitmo, because it is perfectly legal under the Geneva Convention to execute them on sight.